Alongside predictable exchanges on Iraq, the Middle East and religious
liberty, U.S. Secretary of State Condoleezza Rice in her Feb. 8 visit to the
Vatican received an unexpected request -- to intervene in a U.S. lawsuit naming
the Holy See as the defendant in a sex abuse case.

Church sources told NCR that Rice was asked by Cardinal Angelo
Sodano, the Vaticans secretary of state, whether the U.S. government
could stop a class-action lawsuit currently before a U.S. District Court in
Louisville, Ky., that seeks to hold the Vatican financially responsible for the
sexual abuse of minors.

Sources told NCR that Rice explained that under American law,
foreign states are required to assert claims of sovereign immunity themselves
before U.S. courts.

Vatican spokesperson Joaquín Navarro-Valls, asked by NCR
for comment, responded March 2: Its obvious and reasonable that the
Holy See would present its positions as a sovereign entity to the American
State Department, and recall the immunity for its acts that international law
anticipates.

Its not the first time, according to observers, that the Vatican
has asked the State Department for help on a legal matter.

Most experts say that lawsuits against the Vatican in American courts,
such as the Kentucky case that prompted Sodanos request, are a long shot.
At least two dozen previous attempts have gone nowhere, not only because the
Vatican is a sovereign state, but also because American courts are generally
reluctant to deal with religious matters on First Amendment grounds.

Yet Sodanos decision to raise the matter with Rice suggests
concern in Rome that sooner or later its immunity may give way, exposing the
Vatican to potentially crippling verdicts.

William F. McMurry, the Louisville attorney who filed the class-action
suit, told NCR March 1 that in his view billions of dollars would
be required to compensate all the victims of clergy sex abuse in the
United States.

The Kentucky case is one of several lawsuits currently working their way
through American courts in which the Vatican is named as a defendant. Others
include:

Alperin v. Vatican Bank, which deals with the
Vaticans alleged role in recycling loot stolen by pro-Nazi Ustasha regime
in Croatia during World War II (the Franciscan Order is also named as a
defendant);

Zivkovich v. Vatican Bank, a similar action;

Dale v. Holy See, a Racketeer Influenced and Corrupt
Organization (RICO) suit filed by the Insurance Commissioners of Mississippi,
Tennessee, Arkansas, Missouri and Oklahoma, seeking $600 million in damages
related to an insurance scam pulled off by Martin Frankel, allegedly using
Vatican cover;

A number of cases related to sexual abuse, including Doe v.
Holy See in Oregon and Gomez v. Holy See in Florida.

The Kentucky case is, however, the only instance in which the Holy See
is the lone defendant, and the only class-action suit against the Vatican
related to the sexual abuse scandals.

A 1976 law known as the Foreign Sovereign Immunities Act makes it
possible to sue sovereign entities in American courts under certain conditions,
especially when that entity engages in commercial activity in the United
States. The act has been used to sue foreign governments for mistreatment of
citizens if some aspect of that mistreatment took place in the United
States.

Jeffrey S. Lena, an attorney from Berkeley, Calif., who represents the
Vatican in the Kentucky case and other matters, declined NCR requests
for comment, referring queries to the Vatican press office.

Mark Chopko, general counsel for the U.S. Conference of Catholic
Bishops, told NCR that in his 21 years in that role hes seen at
least two dozen cases in which the Vatican, the papal ambassador,
or even the pope himself have been sued.

Its extremely easy to name people in lawsuits, Chopko
said. Its how modern litigation is done -- just name everyone in
the hope that the defendants point fingers at one another.

Chopko said that often the paperwork in these cases is never even served
on the Vatican, a complicated step involving transmission through the U.S.
State Department and the U.S. Embassy to the Holy See, and the cases end up
being dismissed. He said hes not aware of a single case in which the
Vatican has suffered a negative judgment in an American court.

Notice has been served on the Vatican in the Kentucky case.

When notice is served, Chopko said, its a fairly routine step for
the Holy See to request action from the State Department, which can ask the
Department of Justice to recommend against moving forward because of the
Vaticans sovereign status. When that happens, Chopko said, its
usually enough to bring the matter to a close. For example, he said, a case
named Guardian F v. Holy See in the early 1990s was tossed out of
a Texas state trial court on this basis.

Legal observers, however, say that the State Department does not
generally like to be involved in such cases, intervening only when there is an
overriding foreign policy interest.

McMurry and other attorneys suing the Vatican argue that it played a
principal role in covering up sexual abuse of children on American territory.
McMurry points to a 1962 Vatican document, Crimen Sollicitationis
(NCR, Aug. 13, 2003), which he alleges proves that the Holy See
ordered American bishops not to comply with civil laws on reporting childhood
sexual abuse.

Other experts say that document, which concerned abuse of the sacrament
of confession to solicit sexual favors, imposed secrecy on the churchs
internal procedures but did not prohibit penitents or others from reporting
criminal activity to the civil authorities.

McMurry also argued that the Foreign Sovereign Immunities Act
shouldnt enter into his case, because the Vatican was not acting as a
sovereign state but as a religious organization in its policies on
sexual abuse.

Chopko, however, said that even if attorneys such as McMurry could get
past sovereignty and First Amendment considerations, their argument would fail
on the merits. The idea that the Holy See is managing directly all these
activities of the church is not well taken, he said. Supervision of
clergy is vested directly with the local bishops, and nowhere else.

For that reason, Chopko said, the Holy Sees legal exposure is
remote.

California attorney Jon Levy, who represents the plaintiffs in the
Alperin case, said that of all the legal action against the Vatican in
American courts, the insurance commissioners suit may stand the best
chance of going forward. In that case, the allegation is that a foundation
linked to the Holy See was involved in a scam to loot seven American insurance
companies. A former Vatican official, Msgr. Emilio Colagiovanni, was fined
$15,000 in federal court and received five years probation on state charges in
Mississippi related to the case.

Chopko, however, said that the fraud in the Frankel case had already
occurred by the time that the Vatican-linked foundation became involved.

McMurry said that hes awaiting a decision on his request to depose
victims. Eventually, McMurry said, he wants to depose Vatican officials, to
establish what they knew and when they knew it.

McMurry said hes financing the lawsuit personally, and that he
knows its high-risk litigation. Yet he said he has fire
in the belly out of his experience of representing 243 victims, whom he
said were abused by 38 priests over 30 years.

This wont be over until the party who is directly
accountable is brought to justice, and in my opinion thats the Holy
See, he said.

A senior Vatican source told NCR some months ago that the
possibility of becoming implicated in civil litigation is one reason the Holy
See has been reluctant to enter into the details of sex abuse policy in the
United States.

John L. Allen Jr. is NCR Rome correspondent. His e-mail address
is jallen@natcath.org.